Also known as:heightened standards of scrutiny · heightened scrutiny · intermediate scrutiny · strict scrutiny
Written by attorneys — see sources below.
A demanding level of judicial review that requires the government to show a challenged law or classification serves a compelling or important interest and is narrowly tailored to that end. It applies to suspect classifications such as race and to burdens on fundamental rights. The government bears the burden of justification under this standard.
See Our Sources· 8 primary sources
Cases
How its tested
Common Examples
6
Religious Slaughter Ordinance Challenged
Hiroshi Hasegawa, a practitioner of Santeria, faces prosecution under a city rule that singles out the ritual method of animal slaughter. He argues the ordinance was designed to suppress his faith rather than serve a neutral public-health goal. The court applies the heightened standard of scrutiny because the law is not neutral or generally applicable and therefore must be necessary to a compelling interest. The ordinance fails that test and is invalidated.
Minority Contractor Set-Aside Program
Hannah Hughes, a nonminority contractor, challenges a city program that reserves a percentage of public contracts for minority-owned firms without evidence of past discrimination in the local industry. The program rests only on general societal discrimination. Under the heightened standard of scrutiny the city must show a strong basis in evidence of specific past discrimination and narrow tailoring. The set-aside fails and is struck down.
Foster Agency Exemption Policy
Hakim Hall operates a religious foster agency that declines to certify same-sex couples on faith grounds. A city rule bars agencies from rejecting same-sex applicants but allows officials to grant individualized exemptions in other cases. Because the policy is not generally applicable, the court applies the heightened standard of scrutiny. The city cannot satisfy that standard and the rule cannot be enforced against the agency.
Marital Contraceptive Ban Enforced
Hunter Hughes and his wife seek contraceptive advice from a physician but are barred by a state statute criminalizing use of contraceptives by married couples. The statute directly regulates conduct within the marital relationship. The court subjects the law to the heightened standard of scrutiny because it invades a protected zone of privacy. The statute cannot survive that review and is invalidated.
Gender-Based Property Authority Rule
Hilda Hernandez and her husband jointly own rental properties. A state statute permits only husbands to mortgage or sell the property without spousal consent. The classification rests on gender alone. The court applies the heightened standard of scrutiny and requires the state to show an exceedingly persuasive justification substantially related to an important interest. Administrative convenience alone does not suffice and the statute is struck down.
School Funding Wealth Classification
Hassan Hakim, a student in a low-property-wealth district, challenges a state school-finance system that produces large disparities in per-pupil spending. The system classifies students by district wealth. The court declines to apply the heightened standard of scrutiny because education is not a fundamental right and wealth is not a suspect class. The system survives rational-basis review and the challenge fails.
San Antonio Independent School District v. Rodriguez411 U.S. 1, 93 S. Ct. 127, 36 L. Ed. 2d 16 (1973)
In the summer of 1968 Mexican-American parents whose children attended elementary and secondary schools in the Edgewood Independent School District in San Antonio Texas brought a class action. They sued on behalf of schoolchildren throughout the state who were members of minority groups or who were poor and resided in school districts having a low property tax base. Named as defendants were the State Board of Education the Commissioner of Education the State Attorney General and the Bexar County Board of Trustees. The complaint was filed in the United States District Court for the Western District of Texas. A three-judge court was impaneled in January 1969.
The Texas system of financing public education originated with the state's first constitution in 1845. It evolved through constitutional amendments permitting local school districts to levy ad valorem taxes for school buildings and maintenance. These local revenues were supplemented by distributions from the state's Permanent School Fund established in 1854 and the Available School Fund.
In the late 1940s the legislature enacted the Minimum Foundation School Program. Under the program the state supplies approximately 80 percent of the cost of teacher salaries operating expenses and transportation. Each district contributes the remaining 20 percent through a Local Fund Assignment. The assignment is calculated by an economic index reflecting relative taxpaying ability. Every district also levies additional local property taxes beyond the assignment to supplement its foundation grant.
For the 1967-1968 school year the Edgewood Independent School District had an average assessed property value of $5960 per pupil and a median family income of $4686. It raised $26 per pupil through local taxation at a rate of $1.05 per $100 of assessed valuation. It received $222 per pupil from the Foundation Program and obtained $108 in federal funds for a total of $356 per pupil. By comparison the Alamo Heights Independent School District had an assessed property value exceeding $49000 per pupil and a median family income of $8001. It raised $333 per pupil locally at a rate of $0.85 per $100 received $225 from the Foundation Program and $36 in federal funds for a total of $594 per pupil. Similar disparities in per-pupil expenditures existed throughout the state. They were largely attributable to differences in the amount of taxable property within each district.
In December 1971 the three-judge District Court rendered judgment holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The State appealed. The Supreme Court noted probable jurisdiction in 1972 to consider the constitutional questions presented.
5 common questions
Students Frequently Ask...
When does a law trigger the heightened standard of scrutiny rather than rational basis review?
A law triggers the heightened standard when it employs a suspect classification such as race or burdens a fundamental right. Courts then require the government to demonstrate that the classification or restriction is necessary to a compelling interest and narrowly tailored. General societal discrimination or administrative convenience will not suffice.
Supporting sources
How does intermediate scrutiny differ from strict scrutiny under the heightened standard?
Intermediate scrutiny applies to gender classifications and requires the government to show an exceedingly persuasive justification substantially related to an important interest. Strict scrutiny applies to race and requires a compelling interest and narrow tailoring. Both place the burden on the government and reject overbroad generalizations.
Supporting sources
Does a facially neutral policy that produces a disparate racial impact receive heightened scrutiny?
No. A facially neutral policy receives only rational-basis review unless the challenger proves discriminatory purpose. Awareness of disparate impact alone does not establish the requisite purpose.
Supporting sources
When may federal alienage classifications receive rational-basis review instead of the heightened standard?
Federal alienage classifications receive rational-basis review because Congress possesses plenary power over immigration. State alienage classifications generally trigger strict scrutiny, but the federal context permits deferential review if the distinction is not arbitrary or unreasonable.
Supporting sources
Does a law receive heightened scrutiny merely because it burdens an important interest such as broadband access?
No. Heightened scrutiny applies only when a suspect classification or fundamental right is at stake. Interests such as subsidized broadband service do not qualify as fundamental rights triggering strict scrutiny.
Supporting sources
employed when a fundamental interest or suspect classification is involved, see, e. g. , Dunn v. Blumstein , 405 U. S. 330 (1972), and Korematsu v. United States , 323 U. S. 214…
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Constitutional LawIndividual rights · Equal protectionUBEIntermediate